Present: All the Justices
FRANCONIA ASSOCIATES, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 942034 November 3, 1995
ALGERNON CLARK
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
The primary issue we consider in this appeal from a
judgment in a premises liability action is whether the
plaintiff, who was injured on the defendants' premises,
exceeded the scope of his status as an invitee by pursuing a
robber on those premises.
Algernon Clark filed a motion for judgment against
Franconia Associates, a Virginia limited partnership, and
the Fisher Group, Inc. Franconia Associates owns the
Springfield Mall Shopping Center located in Fairfax County,
and the Fischer Group provides professional management
services at the mall. The plaintiff alleged that he was
injured as he exited through a door at the mall in pursuit
of a robber. The plaintiff also alleged that the defendants
breached certain duties owed to him in failing to inspect,
maintain, and repair the door, and that they failed to warn
him of the dangerous and unsafe condition of the door. The
jury returned a verdict of $120,000 in favor of the
plaintiff, the trial court entered a judgment confirming the
verdict, and we awarded the defendants an appeal.
In accordance with well-settled principles, we will
view the evidence and all reasonable inferences it raises in
the light most favorable to the plaintiff, who comes to this
Court with a favorable jury verdict, confirmed by the trial
court.
The plaintiff was employed at a hair stylist shop
located in Springfield Mall. One afternoon as the plaintiff
was standing in front of the shop, the manager of a
restaurant in the mall told the plaintiff, "[t]hat guy just
robbed me. Stop him." The robber ran and exited the mall.
As the plaintiff was running in pursuit of the robber, the
plaintiff approached a glass door in the mall. The
plaintiff, still running, slowed down to push open the door.
As the plaintiff went through the door, it closed very
rapidly, hitting his leg, thereby rupturing his Achilles
tendon.
The plaintiff and defendants agree that the plaintiff
was an invitee immediately before he began to chase the
robber. The defendants contend, however, that as a matter
of law, the plaintiff exceeded the scope of his status as an
invitee and became a trespasser because he "voluntarily
undertook a dangerous venture solely for the purpose of
rescuing a non-party's money." Therefore, the defendants
assert that because the plaintiff was a trespasser, they are
liable only for injuries caused by their "willful and wanton
acts." The plaintiff argues that he retained his status as
an invitee under the facts and circumstances of this case.
The owner of premises is not an insurer of his
invitee's safety. Rather, the owner must use ordinary care
to render the premises reasonably safe for the invitee's
visit. Holcombe v. NationsBanc Financial Services, 248 Va.
445, 448, 450 S.E.2d 158, 160 (1994); Tate v. Rice, 227 Va.
341, 345, 315 S.E.2d 385, 388 (1984); Gumenick v. United
States, 213 Va. 510, 515, 193 S.E.2d 788, 793 (1973); Knight
v. Moore, 179 Va. 139, 146, 18 S.E.2d 266, 270 (1942). The
owner's duty, however, "does not extend to places beyond the
invitation and to which the invitee is not reasonably
expected to go." City of Suffolk v. Hewitt, 226 Va. 20, 24,
307 S.E.2d 444, 446 (1983).
By contrast, the duty that a property owner owes to a
trespasser or bare licensee is limited.
Speaking generally, the duty owing by the
owner 'to a trespasser on his premises is to do
him no intentional or wilful injury.' There must
be such notice of the trespasser's danger as would
put a prudent man on the alert before the duty of
protection arises.
So also with respect to a bare licensee (that
is to say one who is permitted by the passive
acquiescence of the owner to come on his premises
for his own convenience). 'He takes upon himself
all the ordinary risks attached to the place and
the business carried on there.' The owner must
not intentionally or wilfully injure him, but he
owes him the active duty of protection only after
he knows of his danger, or might have known of it
and avoided it by the use of ordinary care.
Appalachian Power Co. v. LaForce, 214 Va. 438, 441, 201
S.E.2d 768, 770 (1974) (quoting Lunsford v. Colonial Coal
Co., 115 Va. 346, 348-49, 79 S.E. 348, 349 (1913)). In
Pettyjohn & Sons v. Basham, 126 Va. 72, 79-80, 100 S.E. 813,
815 (1919), we observed: "Usually, an invitation will be
inferred where the visit is of common interest or mutual
advantage to the parties, while a license will be inferred
where the object is the mere pleasure or benefit of the
visitor."
Here, we hold that the plaintiff did not exceed the
scope of his status as an invitee. The plaintiff's pursuit
of the robber on the defendants' premises was an activity
which conferred a benefit upon the defendants. Certainly,
such act was not for pleasure or benefit of the plaintiff.
Additionally, it is not unreasonable that the defendants may
expect that an invitee would undertake such an act on their
premises. Furthermore, the plaintiff was not injured by
chasing the robber; rather, the plaintiff was injured by the
defective condition of defendants' door.
The defendants assert that even if the plaintiff was an
invitee, "[t]here was no evidence of actual knowledge by the
Mall of any dangerous condition" and, therefore, the
plaintiff failed to present a prima facie case against them.
The plaintiff argues that the evidence of record is
sufficient to show that the defendants did have notice of
the defective condition of their door.
In Roll "R" Way Rinks v. Smith, 218 Va. 321, 327, 237
S.E.2d 157, 161 (1977), we stated:
[I]n order to hold the owner of property
liable for injuries sustained by an invitee due to
the unsafe condition of the premises, it must be
shown that the owner had knowledge of the alleged
unsafe condition, or that it had existed for such
a length of time as to make it the owner's duty in
the exercise of ordinary care to have discovered
it.
See Cannon v. Clarke, 209 Va. 708, 712, 167 S.E.2d 352, 355
(1969).
Steven Wayne Johnson, a postman, had entered
Springfield Mall on numerous occasions and used the door
that is the subject of this litigation. He testified that
about "a couple [of] weeks" before the plaintiff's injury,
"if you opened the door to a certain point . . . halfway or
not quite halfway, there was some tension on the door, and
if you pulled it anymore, it would spring back." Johnson
also testified that he had observed patrons of the mall who
experienced difficulty using the same door. Brian Embrey,
one of the defendants' maintenance employees, testified that
he checked the door twice each week and that he had
performed repair work on the door before the plaintiff was
injured. We are of opinion that this evidence, taken in the
light most favorable to the plaintiff, is sufficient to
permit the jury to find that the defendants had, at the very
least, constructive knowledge that the door closed too
rapidly.
Next, the defendants argue that the plaintiff was
guilty of contributory negligence as a matter of law. The
defendants assert that "[r]unning through a door is reckless
behavior regardless of the reason for running. Running
through a door when there is no compelling necessity to do
so is even more reckless."
Normally, whether a plaintiff is guilty of contributory
negligence is a jury issue unless reasonable minds could not
differ. Holland v. Shively, 243 Va. 308, 311, 415 S.E.2d
222, 224 (1992); Artrip v. E.E. Berry Equipment Co., 240 Va.
354, 358, 397 S.E.2d 821, 823 (1990). As we have stated,
"[t]he essence of contributory negligence is carelessness
and involves an objective test, i.e., whether a plaintiff
failed to act as a reasonable person would have acted for
his own safety under the circumstances." Id., 397 S.E.2d at
823-24. Here, the trial court properly instructed the jury
on the issue of the plaintiff's alleged contributory
negligence. And, there is ample evidence of record to
support the jury's finding that the plaintiff was not guilty
of contributory negligence. Thus, we will not disturb that
finding on appeal.
The defendants assert that "[t]he door could not have
hit Clark as he says it did." We find no merit in the
defendants' contention. The plaintiff testified: "As I was
running down the hallway, I slowed down to push the door. I
put both hands up. I pushed with my left hand, and I
stepped out with my left foot, and before I could get all
the way out the door, the next thing I know I heard a boom,
and I was looking at the pavement." While on the pavement,
the plaintiff saw the door "balancing" against his right
leg. We cannot say, as a matter of law, that the
plaintiff's testimony regarding how his injuries occurred
was either "inherently incredible, contrary to human
experience or to the laws of nature." Simpson v. Broadway-
Manhattan Taxicab Corp., 203 Va. 892, 897, 128 S.E.2d 306,
310 (1962).
Next, the defendants contend that the trial court erred
by admitting the testimony of the plaintiff's expert, Alan
R. Funk. The defendants assert that Funk's testimony was
improperly admitted because "[the testimony] was premised on
the assumption of a fact which was not in evidence, namely,
that the door was used in a normal manner by [the
plaintiff]" and "Mr. Funk's opinion is not based on any
specialized knowledge of door operation beyond the ken of
laymen, but merely on his evaluation of Clark's version of
events." The plaintiff contends that the trial court did
not err by admitting Funk's testimony.
Funk is the president and owner of Atlantic Door
Control, Inc., a distributor for sales, service, and
installation of automatic and manual door closers. He was
president and activities chairman of the Door & Hardware
Institute, a professional organization for the door hardware
industry. He was qualified as an expert witness on the
subject of doors without objection from the defendants.
Funk opined that the door which caused the accident did not
operate properly because it closed too rapidly. Funk also
opined that the speed at which the door is opened should not
affect the speed at which the door would close.
Contrary to the defendants' contention, we hold that
Funk's opinion was admissible because, according to Funk,
the fact that the plaintiff was running when he pushed the
door open would not have affected the speed at which the
door, if properly operating, would have closed. The trial
court did not abuse its discretion by permitting Funk to
render this opinion because his testimony could "assist the
trier of fact to understand the evidence or determine a fact
in issue." Code § 8.01-401.3; see also Swiney v. Overby,
237 Va. 231, 233, 377 S.E.2d 372, 374 (1989).
The defendants also contend that the trial court erred
by admitting in evidence the testimony of Dr. Ruben D.
Cabrera, the plaintiff's orthopedic surgeon. The defendants
assert that Dr. Cabrera had no medical foundation for his
opinion on the cause of the plaintiff's injury. We find no
merit in the defendants' argument.
Dr. Cabrera testified, within a reasonable degree of
medical certainty, that the plaintiff suffered a complete
tear or rupture of his Achilles tendon when the door hit his
leg. Dr. Cabrera, who performed the surgery to repair the
plaintiff's Achilles tendon, based his opinion upon the
medical history that he had taken from the plaintiff and an
examination of the plaintiff's leg. Therefore, we hold that
the trial court did not abuse its discretion by admitting
this opinion in evidence. See Swiney, 237 Va. at 233, 377
S.E.2d at 374.
For the foregoing reasons, we will affirm the judgment
of the trial court.
Affirmed.